I. Introduction

According to Law No. 6,815 of August, 19, 1980, in order to enter Brazilian territory an alien needs a visa, which can be a transit, tourist, temporary, permanent, courtesy, official, or diplomatic one.[1]

A person under the age of eighteen, unaccompanied by his legal representative or without express authorization, cannot obtain a visa. The same rule applies to aliens considered harmful to the public order or national interests; aliens previously expelled from Brazil, except when the expulsion has been revoked; aliens sentenced or prosecuted abroad for crimes conducive to extradition under domestic law; or aliens that do not meet the health standards established by the Ministry of Health.[2] The visa requirement may be waived only in cases where there is an international agreement between Brazil and the requesting national’s country of origin, as a matter of reciprocity.[3]

The visa granted to the alien by the consular authority does not imply any guarantee of entrance or permanent residence in Brazil.[4] Additionally, an alien who does not present a valid travel document or any other form of identification valid in Brazil; who presents identification that has expired, has been tampered with, or has indications of forgery; or who presents a consular visa that does not comport with the conditions established in Law No. 6,815 and in Decree No. 86,715 cannot be admitted into the country.[5]

The resident alien enjoys all rights recognized to Brazilian citizens according to the Constitution and its domestic laws,[6] and the alien must show proof of legal immigration status in the Brazilian territory as required by any authority.[7] Aliens must have specific authorization to work,[8] but the bearers of tourist, transit, or temporary visas, as well as their dependents, cannot work.[9] An employer of unauthorized aliens is subject to fines.[10]

The National Council of Immigration (Conselho Nacional de Imigração—CNIg), which is subordinate to the Ministry of Labor, is the government body in charge of immigration matters.[11] Its organization and functions are regulated by Decree No. 840 of June 22, 1993.[12]

CNIg is responsible, inter alia, for the orientation and coordination of immigration activities; preparation of immigration policies; creation of immigrant selection rules designed to provide the many sectors of the economy with specialized workmanship; promotion of studies related to immigration problems; elaboration of immigration plans; conducting of periodic surveys related to the needs for qualified international workmanship, whether permanent or temporary; settlement of disputes and solution of cases unforeseen by immigration law in regards to immigrant admissions; and provision of opinions on proposals to change immigration legislation.[13]

II. Temporary Workers

A temporary visa may be granted to an alien who intends to come to Brazil[14]

on a cultural trip;

on a business trip;

as an artist or athlete;

as a student;

as a scientist, professor, coach or other professional category, under contract or at the service of the Brazilian Government;

as a correspondent for a newspaper, magazine, radio, television or news agency.

as a minister of a religion or member of an institute of consecrated life and congregation or religious order.

The period of stay in Brazil for the cases foreseen in article 13, sections II and III of Law No. 6,815 will be of up to ninety days; in the case of section VII, up to one year; and in all others, except as provided in paragraph one of article 14, the period corresponding to the duration of the mission, the contract, or the rendering of services, which must be proven before the consular authority, and is subject to the provisions of Brazilian labor laws.[15]

Paragraph 1 of article 14 of Law No. 6,815 determines that in the case of section IV of article 13, the term will be one year, renewable, if applicable, upon proof of academic success and enrollment.

A visa will only be granted to aliens referred to in sections III or V of article 13 if they meet the special requirements established by the CNIg, and provided that they are a party to an employment contract endorsed by the Ministry of Labor or, exceptionally, in cases when the rendering of services to the Brazilian government may be justified.[16]

Normative Resolution No. 74, of February 9, 2007, issued by CNIg, regulates the issuance of temporary and permanent work visas. Under CNIg’s guidelines, if a company qualifies to hire an alien, either temporarily or permanently, the company is required to apply for a work permit with CNIg.[17]

The issuance of work permits for the purpose of obtaining temporary visas under article 13(V) of Law No. 6,815 is regulated by Normative Resolution No. 99 of December 12, 2012.[18] According to the Resolution, the Ministry of Labor may grant a work permit to an alien who comes toBrazil under an employment relationship, provided that the interests of Brazilian workers are respected.[19]

The work permit application must be submitted with the necessary documentation supporting the qualifications or professional experience of the applicant and must be compatible with the intended position.[20]The compatibility requirement between the qualification and the professional experience of the alien with the activity to be performed in the country, as provided in article 2 of Normative Resolution No. 99, does not apply to cases involving applications for work permits for nationals of South American countries or, exceptionally, when the compatibility of the professional profile of the foreigner with the function to be performed in Brazil can be demonstrated by other means.[21] The call for alien workers must be justified by the requesting entity.[22]

In the absence of an employment contract between an alien and a Brazilian company, a temporary visa and a work permit can be granted to a professional coming to Brazil in response to an emergency situation, for the transfer of technology, or for technical assistance purposes arising from a contract or cooperation agreement between a Brazilian company and a foreign company. In this case, the transformation of the temporary visa into a permanent one is not allowed.[23] Administrative, financial, and managerial functions are excluded from the concept of technical assistance.[24]

The work permit is valid for one year and may be extended for an equal period of time provided that its need is established.[25] An emergency situation is defined as a fortuitous situation that endangers life, the environment, property, or that has generated the interruption of production or the rendering of services.[26]

The National Council of Immigration does not have any specific program for temporary low-skilled workers.[27]

III. Recruitment and Sponsorship

A. Foreign Labor Recruiters

There is no data regarding foreign labor recruiters in Brazil or rules applicable to this issue.

B. Sponsorship

A temporary visa to work in Brazil may be granted to aliens that meet the special requirements established by CNIg, provided that they are a party to an employment contract endorsed by the Ministry of Labor or, exceptionally, in cases when aliens are rendering services to the Brazilian government.If a company qualifies to hire an alien, either temporarily or permanently, the company is required to apply for a work permit with CNIg.

On May 14, 2009, the Ministry of Labor and Employment issued Administrative Act (Portaria) No. 802 for the purpose of creating a simplified procedure to submit documents for entities with a large annual number of work permit requests. To this effect, an Electronic Registry of Entities Requesting Authorization for Foreign Workers (Cadastro Eletrônico de Entidades Requerentes de Autorização para Trabalho de Estrangeiros, CERTE) was established subordinate to the General Coordination of Immigration (Coordenação-Geral de Imigração, CGI).[28] Although the Act only authorized registering with CERTE entities that on December 31, 2008, had had more than one hundred requests,[29] article 1(§2) authorizes CGI to allow entities that present a large number of requests to register with CERTE even if they are less than one hundred.

IV. Visa Conditions

A. Employment Relationship

Law No. 6,815 requires that aliens holding a visa allowing them to temporarily work in the country work for the employer who applied for their work permit and be subject to the provisions of the labor contract between them and the sponsoring employer.[30] CNIg may cancel the work permit when there is noncompliance with any contractual clause or breach of statutory provisions.[31]

An alien admitted to the National Territory to work for a particular company who intends to transfer to another company must, prior to the transfer, request authorization from the Ministry of Justice, which will consult with the Ministry of Labor and decide the merits of the request.[32]

B. Visa Term

The term of the visa is usually the period corresponding to the duration of the contract or rendering of services, which must be proven before the consular authority and be subject to the provisions of Brazilian labor laws.[33]

C. Visa Extension and Permanent Status

The period of stay of an alien who is the holder of a temporary visa mentioned in article 1 of Normative Resolution No. 99 of December 12, 2012[34]may be extended or converted into permanent status under the current legislation in force.[35]

the justification presented by the alien to settle permanently in Brazil;

the continuous need for the alien’s work in Brazil, considering the interests of the Brazilian worker;

the evolution of the staff, Brazilians and aliens, of the applicant company.

D. Quotas

According to the information available at the website of the National Council of Immigration, Brazil does not have a limit on the number of aliens allowed to come to work in its territory every year.[38] However, pursuant to the country’s Labor Law, Brazilian companies with three or more employees are required to fill two thirds of their positions with Brazilian workers.[39] For the purposes of article 352 of the Brazilian Labor Law, an alien who has been residing in the country for over ten years, or has a Brazilian spouse or child, or is a Portuguese national is considered a Brazilian citizen.[40]

V. Admission Status of Family Members

Family members of temporary workers are listed on the application for a work permit as dependents of the main applicant, who must have a contractual relationship with a Brazilian company.[41] According to article 98 of Law No. 6.815, dependents of temporary visa holders are not allowed to engage in paid activities in the country. After obtaining a work permit, the main applicant, along with his dependents, is issued a temporary visa.[42]

[34] Article 1 of Normative Resolution No. 99 of December 12, 2012, determines that the Ministry of Labor may grant a work permit to an alien who comes to Brazil under an employment relationship, provided that the interests of Brazilian workers are respected. Resolução Normativa No. 99, de 12 de Dezembro de 2012, supra note 18.